Canada: Pregnant Women Tested for HIV/AIDS Without Consent

Some Canadian doctors are breaking the law by automatically testing pregnant women for HIV/AIDS unless a woman has explicitly refused to be tested. The provinces of Alberta, Newfoundland and Labrador have officially adopted this automatic, opt-out approach, ignoring the informed consent provisions of Canadian health law, said Ralf Jurgens, president of the Montreal-based Canadian HIV/AIDS Legal Network.

Under the law, patients have the right to be fully informed about medical procedures and their ability to give permission or say no when the doctor seeks to administer them. Most Canadians tend to go along with what the doctor suggests. At the same time, said Jurgens, "there is often a misunderstanding that physicians think that they don't have to tell people that they are being tested." Now the Ontario Medical Association is pushing Canada's largest province to abandon its strict adherence to informed consent with regards to HIV/AIDS tests and adopt the automatic approach.

Canadian provinces that take that route are going against international acceptance of informed consent in HIV/AIDS, Jurgens said. "The vast majority of countries worldwide, with very few exceptions, say exactly what I am saying: all pregnant women should be offered HIV testing and counseling. At the end it should be their choice."

In practice, doctors do not always seek consent. Almost 40 percent of surveyed pregnant women in Calgary recently told health officials that they were given an HIV/AIDS test without their knowledge during a prenatal exam.

[Correction: This is incorrect, according to Dr. Laura McLeod, associate medical officer of health for the Calgary Health Region. According to McLeod, the reported study was done across the province of Alberta; only 20.5 percent of the women surveyed live in Calgary. Of surveyed women, 61.3 percent reported they were told HIV testing was a routine part of prenatal care; 33.8 percent said they had not been told; and 4.9 percent did not answer the question. "There is no way of linking these confidential survey responses to actual testing data, so it is not known how many of these women were actually tested," wrote McLeod, who authored a CHR newsletter article reminding physicians of their responsibility to advise patients that the HIV test was part of routine testing, and that they had the choice to decline it.]

Because of the social stigma and discrimination faced by people with HIV/AIDS, pregnant women should receive counseling before and after the HIV/AIDS test, said Katherine Morton, director of communication and development for AIDS Calgary.

But giving Ontario women the choice to consent beforehand has led to the current situation where 70 percent of prospective mothers are taking HIV/AIDS tests, compared to almost 100 percent in Alberta under its opt-out protocol, said Ted Boadway, the OMA's public policy specialist.

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